Non-EEA married to EEA citizen, ILR question

[roaaad]

My wife (non-EEA) and I (EEA) have now been living together in the UK for five years. We did not get married until about 3 years ago. My wife first came to the UK on a student visa, but following our marriage in December 2004 we applied and got a work/residence permit for her as EEA family member. I have been exercising my EEA treaty rights the entire period, either in full time employment or being self-supported.

In light of the above, are we now in a position to obtain Indefinite Leave to Remain for my wife? My reading of the information from the HO suggests so, but I am unsure whether, for instance, we would have to have been married the entire period.

How can I prove that I have been "exercising my treaty rights" as a EEA person for the required five years? What sort of documentation is common here? Tenancy agreements, bank statements??

I have no need for the ILR status, and so my wife will apply on her own using the EEA4 form.

Thanks in advance.

[thsths]

My wife (non-EEA) and I (EEA) have now been living together in the UK for five years. We did not get married until about 3 years ago. My wife first came to the UK on a student visa, but following our marriage in December 2004 we applied and got a work/residence permit for her as EEA family member.

...

In light of the above, are we now in a position to obtain Indefinite Leave to Remain for my wife?

...

How can I prove that I have been "exercising my treaty rights" as a EEA person for the required five years?

...

I have no need for the ILR status, and so my wife will apply on her own using the EEA4 form.

This is an interesting situation, and I hope that someone has experience with it. I think your position is clear: you can apply for permanent residence (not ILR) using EEA3. This gives you a few more rights, and having it certified is always better. The typical proof for "treaty rights" would be the tax statement from your employer (P60?).

The status of your wife is more difficult to figure out, but I think she can apply for permanent residency, too. The requirement is that she "has legally resided with you for a continuous period of five years." It makes no difference under which visa she stayed, as long as you had the same address. So for the time before the marriage you will need to provide proof of a common address, using the usual letters like bank statements or utility bills.

[roaaad]

Thanks for your view. Not sure I like the use of the word "interesting"...."clear cut" would have been preferable

Can anybody else confirm that we're on the right track? The ultimate goal is for my wife to obtain a British passport, which if the EEA family member approach works means, I guess, we can skip the PR/EEA4 and go directly to BN7 at the six-year anniversary.

[John]

The technical answer to your question, roaaad, is that your wife will never be entitled to ILR! That is, you are failing to distinguish between ILR and PR ... Permanent Residence .... that is relevant to those on the EU/EEA route.

This is not an academic distinction. For example, a pass in the Life in the UK test is required by applicants for ILR, but is not an issue as regards PR.

Also you seem to be under the impression that you having PR status means that your wife can be "dragged along" and that she might get PR status at the same time as you. Sorry, that is not the case. Based upon what you have posted your wife will get PR status after 5 years of marriage to you, assuming of course that you are still exercising EU/EEA Treaty Rights until then.

Your PR status? You have a choice. The regulations that came into force on 30.04.06 mean that you get PR status after 5 years of exercising Treaty Rights in the UK ..... even without applying! However if you want a sticker in your passport to prove that you have such status, then use form EEA3 for that purpose.

How to prove it? When you were employed, proof that you were indeed employed. When you were self-sufficient? Indeed proving that was the case. Sorry that is a bit vague but the principles are quite simple.

Finally roaaad, what is your nationality?

[roaaad]

Ah, that's a bit of a blow. I did indeed think that living together for 5+ years and me exercising my treaty rights was sufficient for my wife to be "dragged" along. I suppose she wasn't officially a family member until the marriage so it sort of makes sense. However, this rather important distinction is not really that clear in the text.

Oh well. Back to square one. I'm Norwegian and she's Chinese by the way.

[John]

I'm Norwegian and she's Chinese by the way.

Noted. I was just checking that you are not an A8 or A2 national. So no problem there.

You need to take on board that the EU/EEA regulations that came into force on 30.04.06 made considerable changes. Prior to that date your fiancée then wife could only be deemed to be exercising EU/EEA Treaty Rights in the UK if she had a suitable EU/EEA-type sticker in her passport. So given that her sticker was issued prior to 30.04.06, I think her 5 years starts on the date of issue of that sticker, some time after the marriage in December 2004.

Now it would be very different, for a couple in the same scenario as the two of you, but a few years later in time. The new regulations speak about a "durable relationship" for an unmarried couple, and the fact that the stickers now put into passports are merely confirmatory and actually give no additional rights as such. Nevertheless such confirmation is useful to have, particularly for a Chinese citizen.

Have you got a PR sticker in your passport? If not it might be an idea for you to submit form EEA3 to get that. OK it does not give you any additional rights, but the confirmation of your status will be useful when your wife makes applications in the future.

Do the two of you have any children? If so how old are those children? Just wondering if any children born in the UK might be British as from birth?

[roaaad]

Good point - there's an additional family member on the way (due March 2008). I gather from my reading of the law that as I would technically be a PR by then, he/she would be eligible for BC. Correct? Yet another reason to have the PR confirmed on my side or does this not matter?

[John]

I gather from my reading of the law that as I would technically be a PR by then, he/she would be eligible for BC. Correct?

A couple of points. Firstly you already have PR status! You got it on 30.04.06 when the new regulations came into force. And secondly, given that you have PR status, your child will be British from the moment of birth. To get the child a British passport you would simply apply for the passport.

However, the practicalities include the fact that to obtain a British passport for the child you would need to show that you have PR status .... and the easiest way of doing that would be to get a PR sticker in your passport.

Given that you have had PR status for over 1 year, you are eligible to apply for British Citizenship, assuming you have a pass certificate from the Life in the UK test. Do you intend to go down that route? It would speed up (by one year) the ability of your wife to apply for her British Citizenship.

[roaaad]

Thanks for all your help John. Given that I moved to the UK in mid-October 2002, my PR status comes into effect these days. I can see that there are benefits of getting the PR sticker ASAP, though would be hard pressed to swap my Norwegian citizenship (dual is not permitted sadly).